Direct Enforcement Against the Core Crimes: International and Internationalized Criminal Courts

• Author: Joseph Rikhof/Robert J Currie
• Pages: 192-263

192

CHA PTER 4

DIRECT ENFORCEMENT

AGAINST THE

CORE CRIMES:

INTERNATIONAL AND

INTERNATIONALIZED

CRIMINAL COURTS

A. INTRODUC TION

A truly international criminal law (ICL), with justice dispensed by

international criminal courts, is undoubtedly one of the most import-

ant legal developments of the twentieth century. As noted in the his-

torical survey of international criminal law in Chapter 1, the pre- and

early-twentieth-century prototypical ICL proscribed certain acts, but

directed the proscriptions towards states in the form of obligations

to prevent certain conduct. The idea of an offender being liable under

intern ational law and being tried b efore an intern ational cour t was real-

ized, for all practical purposes,1 only after World War II, in the form

of the Nuremberg and Tokyo tribunals. While the political conditions

created by the Cold War put international criminal justice on the back

burner for some decades, in the late twentieth century the project was

revived and has developed at what can be v iewed only as an astonish-

ing pace. The highest point has been the founding of the International

Cri min al Court (ICC).

1 The f‌irst intern ational crimina l prosecution is often said to be t hat of Peter

von Hagenbach, who was t ried, convicted, and execute d in 1474 for atrocities

committed dur ing the occupation of Breisach; s ee Gregory S Gordon, “The Peter

von Hagenbach Trial: Re conciling History, Historiog raphy and International

Crimin al Law” in Kevin Jon Heller & Ger ry J Simpson, eds, Untold Stories: Hid-

den Histories of War Crimes Trials (Oxford: Ox ford University Press, 2013).

Direct Enforcement A gainst the Core Crimes 193

There can be no doubt that international criminal justice is indeed

“an idea whose time has come,”2 and while the other important piece

is to create a climate that facilitates domestic prosecutions, there is

every reason to believe th at international prosecutions will continue to

occur. The goal of this chapter is to survey and examine the salient fea-

tures of the courts that have carried out and continue to carry out this

important work. A look at the post–World War II prosecutions will be

followed by treatment, in turn, of the United Nations ad hoc tribunals

(former Yugoslavia and Rwanda), the ICC, and f‌inally what are often

referred to as “internationalized” or “hybrid” tribunals.

B. THE NUR EMBERG AND TOKYO

TR IBUN AL S

The seeds for modern international criminal justice were planted just

after the conclusion of World War I through efforts by the victorious

Allied Powers to continue the vanquishing of Germany, in particular.

This would be accomplished by the trial s of senior state off‌icials, includ-

ing the Kaiser of Ger many, for breaches of the laws of war, the “laws of

humanity,” and the making of aggressive war. The “Commission on the

Responsibility of the Authors of War and on the Enforcement of Pen-

alties,” set up to investigate the causes of the war and to recommend

solutions, proposed the creation of an Allied “High Tribunal” to tr y

German war criminals.3 It also suggested that, while there appeared

to be no crime of aggression for which the Kaiser could be held liable,

he could nonetheless be tried for the treaty breaches inherent in the

beginning of t he war. The latter measure, which appea red in article 227

of the Treaty of Versailles,4 was foiled by the refusal of the government

of the Netherlands (to which the Kaiser had f‌led) to extradite him.5 As

for the crime of aggres sion, which was contemplated in articles 228 and

229 of the Treaty of Versailles, prosecution was abandoned, and the only

prosecutions that ultimately took place were carried out by German

2 William S chabas, “The Internationa l Criminal Court: A n Idea Whose Time Has

Come,” John E Read Memorial Le cture, delivered at Dalhousie Uni versity, 27

November 2007 (copy on f‌ile).

3 Report of the Commissi on to the Preliminary Peace Conference, reprinted i n (1920)

14 AJIL 95.

4 112 BFSP 1 (1919).

5 See Kirsten Sel lars, “Trying the Kai ser: The Origins of Inter national Crimin al

Law” in Morten B ergsmo et al, eds, Historical Or igins of International Crimina l

Law: Volume 1 (Brussels: Torkel Ops ahl Academic EPublisher, 2014) at 195–212.

INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW194

courts, with questionable results.6 A promising attempt to prosecute

Turkish war crimes perpetrators7 was eventually thwarted by the 1923

Treaty of Lausanne,8 which imposed a general amnesty. Later, in 1937, a

League of Nations treaty for the formation of an international criminal

court to try terrorist offences was concluded, but did not come into

force for lack of state support.9

Nonetheless, the idea of international w ar crimes trials was re invig-

orated when the world was faced with the problem of how to deal with

the incredible monstrosities of the Nazi regime and acts committed

during the Japanese occupation of parts of Asia. This was in no small

part because the United States, which had resisted many aspects of the

Commission’s proposals in 1920, was in 1945 an enthusiastic propon-

ent of holding war crimes tr ials. American Justice Robert Jackson, who

later became the US Chief Prosecutor at Nuremberg, took an active

leadership role in convincing other Allied leaders (notably Winston

Churchill) that fair and public trials would be preferable to summary

execution of Nazi leaders, not least to legitimi ze the process in the eyes

of the world and leave a fulsome historical record that would chal-

lenge future complacency. Accordingly, the United Kingdom, France,

the United States, and the Soviet Union met in London in 1945 and

concluded the London Agreement of 8 August 1945 which established

the Charter of the International Military Tribunal (IMT Charter).10 The

IMT Charter provided that individuals would be tried for “war crimes,”

“crimes against humanity,” and “crimes against peace,” the latter of

which was an updated version of “the making of aggressive war” pro-

posals from the 1920s.11

6 The so-calle d Leipzig trials, held by G ermany (with some Allied inp ut as to who

would be tried) from 1921–23, tried a re latively small number of offende rs and

imposed light s entences; see Joseph Rikhof, “The Ist anbul and Leipzig Trials:

Myth or Real ity?” in Morten B ergsmo, Cheah Wui Ling, & YI Pi ng, eds, His-

torical Origin s of International Criminal La w: Volume 1 (Brus sels: Torkel Opsahl

Academic EPubli sher, 2014) at 259–74. For a contemporary account, see Claud

Mullins, The Leipzig Trials: An Account of the Criminals’ Trials and a Stu dy of Ger-

man Menta lity (London: HF & G Witherby, 1921).

7 The init ial peace treaty bet ween the Allies and Turkey, the Treaty of Sè vres, pro-

vided for the est ablishment of an internat ional war crimes tr ibunal and an ad

hoc court to deal w ith the Armenian ma ssacre (reprinted at (1921), 15 AJIL 179,

arts 227 and 230); see Ri khof, above note 6 at 274– 82.

8 Treaty of Lausanne between Pr incipal Allied and Associated Powers and Turkey

(1923), 28 LNTS 11.

9 See Vespasi an Pella, “Towards an Internat ional Criminal C ourt” (1950) 44 AJIL 37.

10 82 UNTS 279 [IMT Charter].

11 These c rimes are discus sed in more detail in Chapter 3.